HAMBERGER & WEISS LLP

?? Happy work anniversary to Attorney Susan Parzymieso! Congratulations on 12 years with HAMBERGER & WEISS LLP. ??

Attorney wins coveted apportionment finding Under the New York State Workers' Compensation Law, apportionment of monetary awards to another injury is hardly ever a given, particularly when the other injury did not result from a compensable workplace accident or occupational disease. Nevertheless, our partner JANICE ATWOOD successfully argued for apportionment of permanent injury in a case involving the right knee. ? The case had been established to numerous injuries including the right knee. The treating doctor noted the claimant underwent right knee arthroscopic surgery just six months prior to the work-related accident. Nevertheless, none of his reports addressed apportionment. Likewise, our client’s medical consultant did not address the issue. ? When Janice deposed the treating doctor, he confirmed on cross-examination that the claimant had a prior right knee injury that was not work-related for which the claimant underwent arthroscopic surgery just before the work injury occurred. He continued to treat the prior unrelated injury right up to the date of the compensable accident. He even examined the claimant one week before the work-related injury. Janice was able to have the doctor place the range of motion measurements that he took of the claimant's right knee just before the work injury into the record, which proved to be a crucial piece of evidence. The doctor agreed apportionment of the claimant's impairment at the right knee was appropriate and ultimately opined that right knee impairment should be apportioned 65% to the prior injury and only 35% to the work-related injury. Although the Law Judge declined to find apportionment, Janice took an appeal to the Board Panel. ? Although the Board Panel adjusted the percentages somewhat, the panelists found that Janice had shown by a preponderance of the evidence that the claimant had a prior nonoccupational injury that, had it been work-related, would have resulted in a permanency award. The panel found that apportionment of the right knee permanency award was appropriate, and made a finding accordingly, resulting in a significantly reduced award. ? We congratulate Janice for her skillful development of the record, persistence in taking the case up on appeal, and hard work leading to a favorable result for our client. #workerscomp #nywcb #wcb #attorneys #insurance #adjusters #winning

Happy 1 year anniversary with HAMBERGER & WEISS LLP to Jeffrey Friesen. #workanniversary #hw #attorneys #workerscompdefense #workerscomp

?? Hamberger and Weiss LLP adds three Attorneys ?? Hamberger and Weiss LLP is pleased to announce the addition of three attorneys to its staff. They are: Sebastine Odiata, who was first admitted to the Nigerian bar in 2015 and practiced corporate law at a regional Nigerian law firm before moving to the United States. Mr. Odiata then served in the United States Army, where he supported the Judge Advocate General Corps working on various legal matters. He also holds a Master of Laws (LL.M) degree from Duke University school of Law in North Carolina. Upon graduation from Duke, he was admitted to the New York bar in 2023. Josh Solomon, who holds dual Rabbinic degrees from the Talmudical Institute of Upstate New York. Before attending law school, he worked in property management also taught Talmudic Law for many years. He then earned his law degree from Syracuse University College of Law in 2023 and was admitted to the New York State bar this year. ? Jeannette Chin, who has experience as an associate in firms focusing on defense of legal actions and federal workers compensation. In law school, she interned with several agencies, including the Legal Aid Bureau, the District Attorney's Office, a Supreme Court judge and a judge of the Appellate Division, Fourth Department. She received her bachelor's degree from the University at Buffalo in 2015 and her law degree, also from the University at Buffalo, in 2022. ? Like all the attorneys at Hamberger and Weiss LLP, Sebastine, Joshua, and Jeannette focus their practices exclusively on the defense of claims under the New York State Workers' Compensation Law. We are pleased to add a skilled, focused and diverse trio of attorneys to complement and strengthen our practice. #welcome #attorneys #nys #wcb #workerscompensation #integrity #leadership #expertise #service

Susan Parzymieso of our office recently prevailed in a dispute over the claimant's degree of disability in a concussion case. The claimant relied primarily on her neurologist for the proposition that she remained totally disabled from late February to mid May of this year. She resisted any compromise. ? Susan then cross-examined the attending neurologist. The presiding judge, finding that the claimant only had a moderate degree of disability for most of the period in dispute, and only a mild degree of disability for a portion of the period, noted that the doctor on cross-examination conceded that his opinion was largely based upon the claimant's subjective complaints, without a full reevaluation of her cognitive status. Perhaps most important, Susan brought out the fact that the neurologist did not know that the claimant had contacted another treating doctor on the day following her visit with the neurologist seeking a release to return to work. That doctor had noted a dramatic improvement in the claimant’s subjectively reported symptoms. ? It was Susan's ability to zero in on the weaknesses of the treating neurologist's presentation and then confront him with information about what the claimant was telling another doctor that convinced the judge that an opinion of total disability for the period in dispute was not genuine. Congratulations, Susan, for careful presentation, skillful cross-examination, and a good result. #workerscomp #nywcb #wcb #handw #workerscompdefense #attorneys

HAMBERGER & WEISS LLP Attorney wins fraud disqualification by exposing claimant’s attempt to pull the wool over judge’s eyes about clothing business Attorney Thomas Videon of our office recently argued a case which resulted in the judge disqualifying the claimant from benefits from this July forward. The injury itself was a legitimate injury to the left shoulder which resulted in surgery earlier this year. Although the claimant had admitted that he owned a clothing business, he minimized his activities by saying at one point that he only gave away clothing to family members and his girlfriend. He testified that he really would not have the business up and running until his compensation claim was closed. ? Meanwhile, Thomas had performed Internet searches of the claimant's clothing brand. The claimant had been active on Instagram promoting his clothing and even participated in a fashion show in September 2023 when he claimed to be temporarily totally disabled and was receiving benefits accordingly. Although the claimant's business was promoted in local media prior to the fashion show, the claimant testified that he only took pictures of models and made no sales. ? The judge was unimpressed with the claimant's testimony, finding it purposefully evasive in the face of the information that Thomas had uncovered. She disqualified the claimant from all indemnity benefits from 7/22/24 forward. Thomas showed that careful research and skillful cross-examination is always in fashion in producing good results for our clients. ? #workerscomp #nyswcb #hw #handw #workerscompdefense

HAMBERGER & WEISS LLP Attorney rolls the dice and wins numbers in her favor. Our partner Karen Darling recently argued a case where both attending and consulting doctors found unreasonably large permanency evaluations for the left shoulder,left elbow, and left wrist. The treating doctor found a 45% loss of the arm for the shoulder, 43.3% of the arm for the elbow and 24.4% of the hand for the wrist. Our client’s consulting physician found no permanency for the elbow and wrist, but also found a 43.6% loss for the shoulder. Karen argued that the opinions of the treating doctor were incredibly high, given especially that the claimant had returned to work full duty as an electrician, never had EMG or nerve conduction studies, and had no treatment whatsoever for the elbow or wrist. Karen also argued that the treating doctor's deposition testimony did not support causal relationship between the reduced range of motion the claimant demonstrated at the wrist and elbow and the injury. When challenged, the doctor admitted he could not say whether the range of motion loss at these two sites was related to the injury of this case. Karen pointed out that in the attending doctor’s very first report, he noted that the claimant had full range of motion at the elbow and negative Tinel's signs at the cubital and carpal tunnel. Karen pointed out that the attending doctor’s reports made no mention of the elbow or wrist at all until the time of the permanency evaluation. ? With respect to the shoulder, Karen argued that the consulting physician’s opinion was more credible than that of the attending doctor’s. She argued that the attending physician incorrectly declined to examine the contralateral side for comparison. Karen also argued that the range of motion measurements found by the attending doctor at the time of the permanency evaluation were notably worse than at any other appointments over the five month period of time leading up to the evaluation. She also emphasized comments in the consulting doctors report that the claimant exhibited poor effort on range of motion testing. ? After considering Karen's arguments, the judge ultimately found a 42% schedule loss of use of the shoulder, below the evaluation of both doctors, and also declined to find any permanency at the elbow and wrist. This finding resulted in a savings of many thousands of dollars for our client. This was clearly a gamble that paid off because Karen was prepared with skillful arguments against the excessive evaluations and the claimant's attempt to hit the jackpot. #workerscompensation #NYWCB #hambergerandweiss #workerscomp #H&W

HAMBERGER & WEISS LLP wins by arguing fraud was brewing at coffee shop! John Land developed the record and obtained the fraud finding in this case, which involves an established claim for the back. The claimant testified that his son owned a coffee shop and that he gave his son money to start the business as well as business advice. He testified that he did not work there, but just hung out with his friends and did not even know how to operate the cash register. He claimed that he would help out at the store but did not work there. Meanwhile, surveillance showed the claimant making a presentation at the town clerk's office to obtain a permit for the coffee shop. He was shown moving items into the coffee shop. On the opening day of the business, he was seated at the shop all day. He assisted with cleaning up at the store. A few days later, he was seen working at the shop and going on a ladder to assist with the sign. In the same timeframe, he was seen arriving in the morning, waiting for customers behind the counter, and counting out the cash register. ? The claimant told both his own doctor and the carrier’s consulting physician that he was severely disabled and in pain. After seeing the surveillance, however, the carrier’s consulting physician testified he believed that the claimant's actions did not match his presentation at the exam. ? In imposing a lifetime ban on indemnity benefits, the judge held that the claimant was in violation of the Workers' Compensation Law fraud provisions as he was actively performing business activities while claiming workers’ compensation benefits and was untruthful about this in his testimony. The judge wrote that he?was seen actively participating in the business, essentially running it from open to close, waiting on customers and working at the register on any given day, which he falsely denied when he testified. The judge imposed a lifetime ban on benefits, noting that the claimant flatly denied working at the business and stated he did not even know how to work the cash register. The judge noted that on 12/28/23, the claimant alleged a 9/10 pain level and asked for a note to retire from his doctor, having worked a full day at the coffee shop less than a week before. ? John was able to marshal the surveillance evidence and testimony of the claimant and the carrier’s consulting physician. In short, he was using the old “bean.” #hw #workerscomp #workerscompensation ???? ??

For HAMBERGER & WEISS LLP attorney, back-to-back wins are “an eye for an eye” John Land of our office recently achieved disallowance of?a second eye injury claim for the same claimant, skillfully using the record developed in the first case several years ago to obtain the same result in the second. The claimant filed an initial left eye injury claim alleging that in 2020, he was cutting metal when a piece of debris entered his left eye. Emergency room treatment immediately after this episode indicated the claimant was treating for a left on a corneal ulcer, but there was no medical narrative or treatment summary provided and no mention of an injury in the right eye. The treating doctor testified that he first treated the claimant for a reported right eye injury and then for a claim to left eye injury about one week later. The doctor diagnosed mild right eye inflammation and a condition in both eyes related to sun exposure. The doctor noted during his deposition that the claimant was a poor historian and that he had been unable to pin down a good description of the mechanism of injury with respect to either eye. The employer testified in the left eye case that no notice of a work injury – – either to the left or to the right eye – – was ever reported. Following John's development of the record, the judge disallowed the left eye claim. The day following the treating doctor's deposition, the claimant filed another claim alleging the right eye injury, alleged to have occurred six days after the disallowed left eye injury. The Workers' Compensation Board essentially transferred much of the information from the left eye case into the file for the right eye matter. Although our client was precluded from obtaining an independent medical examination and the employer witness could now not be reached for testimony, John argued that the employer witness had testified several years ago on the left eye case and that the judge should consider the testimony to apply equally to the right eye case. John also argued that the treating doctor's deposition taken several years ago was also applicable to the right eye claim. The judge credited John's argument and disallowed the right eye injury case on the same basis as the left eye injury case had been disallowed several years earlier. John was able to marshal the record he developed in the first case to convince the judge to disallow the second one on the same basis, even though John was handicapped in the second case with no contrary medical and no employer witness present to refute the claimant's claim. His resourcefulness led to a doubly good result for our client. ?#hw #workerscomp #workerscompensation ???? ??

HAMBERGER & WEISS LLP attorneys take a “bite” out of dog attack claim! Attorneys Ellen Shanahan Becker and Thomas Videon of our office worked together on this matter to obtain disallowance of a claim of consequential shoulder injury in this dog attack case. The claimant was attacked by a dog in the course of his employment. He was bitten in the bicep, and soon after complained of right shoulder pain, alleging that the dog attack had also caused an injury there. Ellen and Thomas were able to develop the record to show that this claimant had a pre-existing condition in the right shoulder. Their persistence in obtaining records of treatment prior to the date of injury enabled them to effectively cross-examine the doctors on the issue of a shoulder injury. After the Law Judge disallowed the shoulder claim, the claimant appealed, and the Board Panel agreed with the Law Judge and our firm's argument. The Board Panel noted that one treating doctor admitted during testimony that he did not have enough information to state that the trauma from the dog bite exacerbated or aggravated a pre-existing condition in the claimant’s shoulder. Another doctor was not even aware that the claimant had previously been treated for a right shoulder injury and did not review any of the claimant's prior treatment records. He was not aware of the claimant's prior injury--a fall in a garage on his right arm--so he could not form an opinion on a causal relationship. Our client’s consultant noted that the claimant had pre-existing chronic right shoulder rotator cuff arthropathy. He indicated that it would be expected the claimant had restrictions of range of motion prior to his work accident. He found the claimant’s shoulder condition to be unrelated to his work accident, and both the Law Judge and the Board Panel credited this opinion, twice disallowing the right shoulder claim. Ellen and Thomas proved that by hounding providers for prior treatment records and then approaching cross-examination of the doctors with dogged determination, they can achieve an excellent result for our clients. #hw #workerscomp #workerscompensation